Law and reality in publishing (seldom the same thing) from the author's side of the slush pile, with occasional forays into politics, military affairs, censorship and the First Amendment, legal theory, and anything else that strikes me as interesting.

16 March 2006

The Intentional Fallacy

One of the real difficulties in interpreting the constitution and statutes (and even administrative regulations) is the "literal text" v. "intent" conflict. On the one hand, we have to begin somewhere in interpreting nonjudicial law, and that place does need to be the text. As Hugo Black remarked, "'No law' means 'no law.'" And Justice Black is right… if we can somehow agree on what "law" means. Broadening the context a bit, we see "Congress shall make no law." So, it's just a restriction on Congress, right? Doesn't that mean that law "made" by the executive branch is not subject to the First Amendment's restrictions? Continued broadening of contextwithout even going into interpretationanswers that question pretty clearly: The constitution doesn't give the executive any authority to "make law" in anything except, perhaps, foreign relations and the military (and only perhaps). The administrative state as we know it is a question of whether Congress can delegate its law-making powers to the executive branch. Although that fight is far from over in the details, the key point is that it's Congress's power that's at issue more than the executive's, implying that the First Amendment would indeed apply to administrative regulations, procedures, and decisions.

That's all well and good. But Congress isn't the only legislature at issue. We have a federal system with independent state legislatures. Can't state legislatures restrict freedom of speech? This is a far more difficult issue, as it requires looking at the constitution as a whole and trying to ferret out logical extensions. The best answer seems to be that First Amendment rights are reserved to the people, and not to the states; it is not an absolutely compelled result, but if one values internal consistency one must reach the conclusion that state legislatures cannot abrogate federal constitutional rights reserved to the people any more than can Congress.

The obvious hard case is "what about judge-made law"? The constitution doesn't define the "judicial power" allocated to the Supreme Court; it assumes that the reader understands what that means. In turn, that requires delving into the records of the constitutional convention, the Federalist and Antifederalist Papers, and other contemporaraneous accounts to discern what that phrase means. Its immediate context makes clear that it means at least the ability to resolve "cases and controversies." Orthodox interpretation of the constitution's text asserts that that is also the limit of the judiciary's power; but that doesn't answer the question of whether judges "make law." For that, we have to make that review of other documents to discern intention.

All of which, in a roundabout way, brings us to an important article on election law that Professor Hasen has recently posted on SSRN. Professor Hasen wants to know if evidence of "bad intent" by a legislature (or, I suppose, some other apportioning body or electoral regulator) is relevant in interpreting outcome-unbalancing election provisions and apportionment.1 His abstract remarks:

[D]espite the arguments of some leading election law scholars, including Professor Richard H. Pildes, proof of such bad intent should be neither necessary nor sufficient for an election law challenge to succeed, though it should be relevant in getting courts to take a hard look at election laws. Rather than focus on intent, courts should primarily examine the effect of election laws on the rights of individuals and groups, and, when the effects are severe enough, carefully balance those bad effects against the stated and proven interests of the state in the election law. ….

I argue for a careful balancing of asserted state interests against the rights of individuals and groups to engage in collective action for political purposes. Although courts have purported to engage in balancing, balancing has been tepid (or even a sham) and its protections against legislative self-dealing largely illusory. I offer recent examples of the courts' weak balancing efforts. Courts should engage in closer means-ends scrutiny.

Of course, inferring the "real" intent (the "ends") from the stilted entries in the legislative record is virtually impossible, and it's absolutely impossible to do so from the bare text of a statute as enacted. So-called "legislative findings of fact" are almost always, to put it baldly, lies.2 Professor Hasen is correct in implying that, no matter what the current "fashion" in some quarters to demonstrate total disdain for legislative history, it is at minimum relevant to the ultimate interpretation.

Of course, this is consistent with something that literary scholars have been arguing over for a few centuriesSir Walter Raleigh's complaints to Edmund Spenser about Raleigh's inability to understand the political allegory in The Faerie Queen are far from the first example.3 Intent is a relevant, but not binding, consideration in interpreting a textat least when the ends of the text do matter, as in a legislative provision. There I slightly disagree with Professor Hasen; in that context, considering intent is always necessary, if only to catch the "scrivener's error." It's really a question of what evidence one is allowed to use to determine "intent." Professor Hasen's nuanced explanation in the context of election law raises another question (one far beyond my poor ability to explore in a blawg): Is the appropriate interpretation protocol different for election law than for all other law?

Of course, in some sense every single statute is "outcome-unbalancing." Professor Hasen's primary example here is various varieties of gerrymandering, and especially the "partisan" gerrymander. His reasoning appears to apply to many other aspects. For example, apportionment of a fixed number of representatives435 (or 436 counting DC's nonvoting "delegate")to a constantly growing population seems rather silly. The UK, with about a fourth of the population and a vastly smaller area, has well over 600 Members of Parliament. Some of the legislative history of the statute fixing the membership of the House of Representatives at 435, though, implies that maintenance of prestige and prerogative was at least in the back of the minds of the draftersand that certain qualifies as maintaining the power of one group at the expense of another through manipulation of the electoral process.

Consider, for example, the "legislative finding" that the D&X method of aborting a fetus is never necessary or appropriate to protect the life of the mother. Such a finding practically screams "we decided this before we actually looked at the facts"and should get no more deference in interpreting that statute than should any other medical diagnosis not made by medical professionals. And Mr Frist, you're not acting as a medical professional; IMNSHO your apparently incompetent and almost certainly unethical (medically or generally, take your pick) behavior in the Schiavo matter indicates that you are, at minimum, unacceptably out of practice in considering the circumstances of an individual patient, instead of whatever abstraction best serves your electoral interests.

The DMCA and other aspects of intellectual property law are at least as prone to such nonsense as antiabortion statutes. Admittedly, the actual problems with the findings tend to be more subtle.

Raleigh's later execution for (depending upon whom one listens to) "treason against the crown" might indicate that Raleigh wasn't the most astute possible reader. Of course, the struggles of generations of students and scholars with that same text since more likely indicate that Spenser wasn't the most astute possible writer. <SARCASM> Of course, statute drafters are vastly better at making their meaning clear than was Edmund Spenser. And they're more motivated to do so, too. </SARCASM>

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